Allowed

Rajan Frederic v. State of Kerala

Kerala HC1 Dec 2021Crl.MC/4230/2020

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings under Section 188 IPC and Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The Court held that cognizance was impermissibly taken on a police report under Section 195 CrPC and that a Magistrate below the Chief Judicial Magistrate rank erred in taking cognizance under Section 25 of the Paddy Land Act. Citing Murugan v.

What did the court decide?

Crl.M.C. Nos. 4230/2020 and 4993/2020 are allowed; proceedings in C.C. No. 84/2020 are quashed.

Rajan Frederic Vs State of Kerala — Land Acquisition | Kerala HC (2021)

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Crl.MC No.4230 & 4993 of 2020 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943

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CRL.MC NO. 4230 OF 2020

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[AGAINST C.C.NO.84/2020 ON THE FILES OF THE CHIEF JUDICIAL

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MAGISTRATE COURT, ERNAKULAM ARISING OUT OF CRIME NO.37/2015 OF

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MARADU POLICE STATION]

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PETITIONERS/ACCUSED NOS.1 AND 2:

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1 RAJAN FREDERIC,AGED 64 YEARS S/O.FRANCIS FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P.O., ERNAKULAM682020.

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2 ANSYRAJAN,AGED 62 YEARS W/O.RAJAN FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P.O., ERNAKULAM682020. BY ADVS. DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR

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RESPONDENTS:

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1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 SUB INSPECTOR OF POLICE, MARADU POLICE STATION, ERNAKULAM-682304.

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OTHER PRESENT:

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R1 AND R2 BY PP-SRI.SUDHEER GOPALAKRISHNAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.12.2021, ALONG WITH Crl.MC.4993/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC No.4230 & 4993 of 2020 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943

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CRL.MC NO. 4993 OF 2020

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[AGAINST C.C.NO.84/2020 ON THE FILES OF THE CHIEF JUDICIAL

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MAGISTRATE COURT, ERNAKULAM ARISING OUT OF CRIME NO.37/2015 OF

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MARADU POLICE STATION]

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PETITIONERS/ACCUSED NOS.2,3 & 5:

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1 RINSA SUSAN PHILIP AGED 34 YEARS W/O.FRANCIS GEORGE FREDERIC,RESIDING AT PARAYIL HOUSE,CHILAVANNOOR ROAD, KADAVANTHARA,KOCHI-682020. 2 FRANCIS GEORGE FREDERIC, AGED 34 YEARS S/O.RAJAN FREDERIC,RESIDING AT PARAYIL HOUSE,CHILAVANNOOR ROAD,KADAVANTHARA, KOCHI-682020. 3 THOMAS GEORGE FREDERIC, AGED 27 YEARS S/O.MR.RAJAN FREDERIC,PARAYIL HOUSE, CHILAVANNOOR ROAD,KADAVANTHARA, KOCHI-682020. BY ADVS. DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 SUB INSPECTOR OF POLICE, MARADU POLICE STATION,ERNAKULAM-682304.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.12.2021, ALONG WITH Crl.MC.4230/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC No.4230 & 4993 of 2020 3

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O R D E R

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[Crl.MC Nos.4230/2020, 4993/2020]

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... Both these Crl.M.Cs. are filed challenging the

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proceedings in C.C.No.84/2020 on the file of the

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Chief Judicial Magistrate Court, Ernakulam which

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arises from Crime No.37/2015 of Maradu Police

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Station. The petitioners in Crl.MC No.4230/2020 are accused numbers 1 and 2 whereas the petitioners in Crl.M.C.No.4993/2020 are accused Nos.3,4 and 5.

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The offences alleged against the petitioners are under Section 188 r/w. Section 34 of the Indian Penal Code and also under Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as Paddy Land Act). The allegation against the petitioners is that, in violation of the prohibitory order passed by the Revenue Divisional Officer, the property included as paddy land in the data bank has been re-claimed by the petitioners. The cause

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of action was stated to have occurred prior to

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7.1.2015 and the property mentioned therein

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Crl.MC No.4230 & 4993 of 2020 4

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comprised in Resurvey No.416/2 in Block No.13 of Maradu Village. These Crl.MCs. are filed by the

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petitioners to quash the aforesaid proceedings.

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Heard Sri. Deepu Thankan, the learned counsel for the petitioners and Sri. Sudheer

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Gopalakrishnan, the learned Public Prosecutor for the respondents.

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The learned counsel for the petitioners

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contends that, the petitioners cannot be proceeded against for any of the offences alleged in

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Annexure-A1 final report, as the prosecution

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pursuant to the same are unsustainable in view of the specific bar contained under Section 195 of the

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Code of Criminal Procedure (Cr.PC) and also under section 25 of Paddy Land Act.

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The learned Public Prosecutor opposes the

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said contention.

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As far as the offence under Section 188 of

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the IPC is concerned, Section 195 of Cr.P.C

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provides that no court shall take cognizance of any

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offences punishable under Sections 172 to 188 (both

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Crl.MC No.4230 & 4993 of 2020 5

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inclusive) of the Indian Penal Code, except on a complaint in writing, by such officer of the court or the public servant whose orders were alleged to have been violated by the accused persons . However, in this case, the cognizance has been taken on the basis of a police report submitted under Section 173 of the Cr.PC which is not contemplated under Section 195 of Cr.P.C. Going by the stipulations contained in Section 195 of the Cr.PC, cognizance can be taken only on the basis of a complaint submitted by the officer of whose order has been violated. In the facts and circumstances of the case, cognizance can be taken only on the basis of a complaint submitted by the Revenue Divisional Officer or any of the officers subordinate to him. In this case, cognizance was taken on the basis of a police report under Section 173 of the Cr.PC on a complaint submitted by the Village Officer and Agricultural Officer, Maradu,

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which is not permissible by virtue of Section 195 Cr.PC. The position of law is settled in favour of

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Crl.MC No.4230 & 4993 of 2020 6

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the petitioners as per the judgment in Murugan v.

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State of Kerala [2014(2) KHC 150] . The legal

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position put forward by the learned counsel for the petitioners is clearly considered therein and is found in their favour.

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With regard to the offence under Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, it was contended by the learned counsel for the petitioners that, the act of taking cognizance of the same is bad due to the operation of Section 25 of the said Act. As per Section 25 of the said Act, no court below the rank of Chief Judicial Magistrate Court shall take cognizance of

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any of the offences punishable under the Act, except on a report in writing of the fact constituting such offence by an officer authorized under sub-section (1) of Section 12. The act of taking cognizance in

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respect of Section 23 of the Kerala Conservation of

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Paddy Land and Wetland Act is against the

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stipulation contained in Section 25 of the said Act which specifically contemplates that a complaint

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Crl.MC No.4230 & 4993 of 2020 7

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has to be filed by the officer specifically authorised in this behalf. Here again, as mentioned above, the cognizance was taken on the basis of a police report. It is true that Section 25 has been omitted from the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from 30.12.2017. However, in this case, cause of action has arisen prior to the omission of the said provision from the Act and therefore at the relevant time Section 25 was in force. Thus, on that ground also, the proceedings against the petitioners are vitiated.

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Apart from the above, the learned counsel for the petitioners brought my attention to Annexures A7 to A10, which are the proceedings of the Revenue Divisional Officer who has passed Annexure-A11 prohibitory order. The aforesaid orders would indicate that the property which was the subject matter of Annexure-A11 prohibitory order, was subsequently ordered to be removed from the data

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bank, as it was found that the property was reclaimed even before the enactment of Kerala

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Crl.MC No.4230 & 4993 of 2020 8

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Conservation of Paddy Land and Wetland Act, 2008. So, no fruitful purpose would be served by conducting a trial in this case.

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Thus in any view of the matter, none of the

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offences alleged against the petitioners are legally sustainable and the act of taking cognizance is also not in the manner as contemplated under Section 195 of the IPC and also under Section 25 of the Kerala Conservation of

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Paddy Land and Wetland Act, 2008. In such

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circumstances, I am of the view that this is a fit case in which the extra ordinary jurisdiction of this Court under Section 482 of Cr.PC can be

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invoked.

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In the result, both these Crl.MCs. are allowed and all proceedings in C.C.No.84/2020 on the file of the Chief Judicial Magistrate Court, Ernakulam

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which arises from Crime No.37/2015 of Maradu Police Station are hereby quashed.

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Sd/-

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pkk ZIYAD RAHMAN A.A., JUDGE

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Crl.MC No.4230 & 4993 of 2020 9

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APPENDIX OF CRL.MC 4230/2020

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PETITIONER’S ANNEXURES:

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ANNEXURE A1	CERTIFIED COPY OF THE FINAL REPORT DATED 30.04.2017 IN CRIME NO.37/2015 OF MARADU POLICE STATION.
ANNEXURE A2	TRUE COPY OF THE BUILDING PERMIT OBTAINED BY THE PREVIOUS OWNER OF THE PROPERTY DATED 18.07.2006.
ANNEXURE A3	TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT DATA BANK PREPARED BY THE LLMC OF MARADU MUNICIPALITY.
ANNEXURE A4	TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED BY THE LLMC OF MARADU MUNICIPALITY.
ANNEXURE A5	TRUE COPY OF THE REPORT OF ADDITIONAL TAHSILDAR, KANAYANNOOR DATED 01.08.2013.
ANNEXURE A6	TRUE COPY OF THE CERTIFICATE NO.215/2014 DATED 14.10.2014 ISSUED BY THE VILLAGE OFFICER, MARADU.
ANNEXURE A7	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A8	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A9	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A10	TRUE COPY OF THE ORDER OF THE RDO DATED 15.06.2019.
ANNEXURE A11	TRUE COPY OF THE PROHIBITORY ORDER OF THE RDO DATED 15.11.2014.

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Crl.MC No.4230 & 4993 of 2020 10

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APPENDIX OF CRL.MC 4993/2020

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PETITIONER’S ANNEXURES:

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ANNEXURE A1	CERTIFIED COPY OF THE FINAL REPORT DATED 30.04.2017 IN CRIME NO.37/2015 OF MARADU POLICE STATION.
ANNEXURE A2	TRUE COPY OF THE BUILDING PERMIT OBTAINED BY THE PREVIOUS OWNER OF THE PROPERTY DATED 18.07.2006.
ANNEXURE A3	TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT DATA BANK PREPARED BY THE LLMC OF MARADU MUNICIPALITY.
ANNEXURE A4	TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED BY THE LLMC OF MARADU MUNICIPALITY.
ANNEXURE A5	TRUE COPY OF THE REPORT OF ADDITIONAL TAHSILDAR, KANAYANNOOR DATED 01.08.2013.
ANNEXURE A6	TRUE COPY OF THE CERTIFICATE NO.215/2014 DATED 14.10.2014 ISSUED BY THE VILLAGE OFFICER, MARADU.
ANNEXURE A7	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A8	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A9	TRUE COPY OF THE ORDER OF THE RDO DATED 13.06.2019.
ANNEXURE A10	TRUE COPY OF THE ORDER OF THE RDO DATED 15.06.2019.
ANNEXURE A11	TRUE COPY OF THE PROHIBITORY ORDER OF THE RDO DATED 15.11.2014.
ANNEXURE A12	TRUE COPY OF THE JUDGMENT IN WPC NO. 6662/2020 DATED 5.3.2020.
ANNEXURE A13	TRUE COPY OF THE JUDGMENT IN WPC NO.6665/2020 DATED 5.3.2020
ANNEXURE A14	TRUE COPY OF THE INTERIM ORDER DATED 22.10.2020 IN CRL.MP NO.1/2020 IN CRL.MC NO.4230/2020.

Rajan Frederic v. State of Kerala

Case brief

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Rajan Frederic v. State of Kerala

Case brief

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